United Liberty

Following the three days of oral arguments over the Patient Protection and Affordable Care Act, I made some predictions on how the Supreme Court would rule on each of the four questions they would consider. But after spending some time reading the vast commentary on the case, I wanted to take another look at the two most pressing questions.

First, my predictions on the specific arguments dealing with the Anti-Injuction Act and Medicaid expansion statues in the law are unchanged. The Supreme Court will almost certainly reject the argument, either unanimously or in an 8 to 1 decision, that the Anti-Injuction Act prevents a challenge until tax provisions in the law kick in.

On the Medicaid statues, I still believe a six-vote majority will reject the challenge brought forward by 26 states that expansion of the government-funded program impedes on their sovereignty. The only way that states will “win” that argument is if the High Court strikes down the law in its entirety.

On the Individual Mandate: I had previously written that the Supreme Court would, in a 5-4 decision, strike down the individual mandate. While I still think that’s the case, I’m much less confident that Justice Anthony Kennedy wasn’t able to create some sort of “limiting principle” on the Commerce Clause. If Kennedy does plan to vote in favor of the mandate, Roberts, who is expected to write the opinion, may indeed join him.

With that said Roberts’ may actually be more of a tip of the cards here since he expressed a lot of doubt about the individual mandate during oral arguments.

On Severability: If they vote to strike down the individual mandate, I don’t believe the Supreme Court will take down the rest of the law; in fact, I would be surprised if that were the case. This may be a political “face saving” move for the Obama Administration and the court itself more than anything else.

Whatever happens, we’ll be on it as soon as the decision is announced.